From the viewpoint of human rights and public security, it would have been better if Osama bin Laden was taken to court.

By Goran Sluiter*

The death of Osama bin Laden has been applauded in the western world, although there are sporadic voices saying that it would have been preferable if he could have been tried in court. The questions as to why that would have been important, and where the process should have been held, have been given little attention.

Dead or alive
There are a number of concrete advantages of a legal process. It would have given the opportunity to verify the facts on a large number of terrorist attacks. A well organised court case is ultimately a more satisfactory way of getting even, both for the public and the victims.

Bin Laden’s death means that the truth regarding his many alleged crimes will remain unsolved for the victims. If he were alive, he would have been an invaluable source of information on other suspects and his own terror network. Particularly in regards to the latter, one could question how much effort the Americans really have taken in order to capture him alive. I doubt that, in the light of public security, capturing Bin Laden alive was not a priority during the preparatory phase of this US operation.

Innocent until proven guilty

From the perspective of Bin Laden’s legal rights, his death is also to be regretted. While many may disagree, the fact is that Bin Laden is also entitled to the basic premise of being innocent until proven guilty. While evidence of his guilt, including that presented in the media, may appear irrefutable, the final verdict should be left to judges in a court of law. From a legal point of view, Bin Laden died an innocent man.

Trying a suspect like Bin Laden does bring a slew of problems. The legal procedure may be lengthy, the location of the trial could be a target for attacks, and there is always the possibility of acquittal: the predicaments are endless.

American society
From the defence point of view, some would worry about the rights of the defendant, such as prohibited methods – torture – during questionings, and finding impartial judges. It would not be surprising if a court case in the US would conjure up questions as to whether it were possible for Bin Laden to receive a fair and impartial trial due to the enormous impact that 9/11 has had on American society.

These objections, however, are not crucial. Trials should always have the upper hand over blind revenge. Otherwise, the international legal structure might as well be pronounced dead. Some of the objections against putting him on trial could be intercepted by a careful reasoning about where and how suspects such as Bin Laden should be tried.

ICC
In The Netherlands, the first thing that comes to mind is an international legal process. The International Criminal Court in The Hague can play a role. But there are two shortcomings: the ICC has jurisdiction over events which occur after July 1, 2002. Also, terrorism is not included in its crime dossier. In any case, it would be out of the question for the US to hand over Bin Laden’s case to the ICC - because the US refuses to sign up to the court. In turn, the ICC prefers that countries try suspects in national courts.

While it is clear that the ICC in its current role would have had no jurisdiction over a Bin Laden trial, his death should lead to further investigation into a possible future role of the ICC in trying chief international terror suspects. In order to do this, two points in the Rome Statute have to be adjusted.

Terrorism
First of all, the crime of terrorism must be included in the Statute. During the Review Conference on the Rome Statute in Kampala last year, the Netherlands filed a proposal to that effect. This proposal would be a sound basis for future negotiations. While it won’t be easy to find a fitting definition that would please all parties, terrorism in its character and scope does fit in considerably well with the other crimes being handled by the ICC.

Another important adjustment should be that – under particular circumstances – the ICC should give priority to terrorism cases. International terrorism sets itself apart by its multiple locations of crime, across many countries. If Bin Laden were still alive, a trial in New York would seem reasonable, but courts in London, Madrid, and a number of other places would certainly like to try him in front of their judges.

International judges
If Bin Laden would have been tried in the US, it would have been very likely that terror attacks outside the US would have gotten little – if any – attention. If the ICC were to have a pivotal and primary role in this, all the details of his alleged crimes would come under discussion. It would also happen in a courtroom presided over by international judges less entwined with the alleged crimes - and thus less likely to be criticised for not being objective.

* Goran Sluiter is Professor of International Law at the University of Amsterdam

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Earlier IJT editions:

• International Justice Tribune, 127 (27 April 2011)
• International Justice Tribune, 126 (13 April 2011)
• International Justice Tribune, 125 (30 March 2011)
• International Justice Tribune, 124 (16 March 2011)
• International Justice Tribune, 123 (2 March 2011)
• International Justice Tribune, 122 (16 February 2011)
• International Justice Tribune, 121 (2 February 2011)
• International Justice Tribune, 120 (19 January 2011)
• International Justice Tribune, 119 (14 December 2010)
• International Justice Tribune, 118 (1 December 2010)
• International Justice Tribune, 117 (17 November 2010)
• International Justice Tribune, 116 (2 November 2010)
• International Justice Tribune, 115 (20 October 2010)
• International Justice Tribune, 114 (4 October 2010)
• International Justice Tribune, 113 (21 September)
• International Justice Tribune, 112 (8 September 2010)
• International Justice Tribune, 111 (25 August 2010)
• International Justice Tribune, 110 (14 July 2010)
• International Justice Tribune, 109 (30 June 2010)
• International Justice Tribune, 108 (16 June 2010)
• International Justice Tribune, 107 (2 June 2010)
• International Justice Tribune, 106 (19 May 2010)
• International Justice Tribune, 105 (5 May 2010)
• International Justice Tribune, 104 (21 April 2010)
• International Justice Tribune, 103 (7 April 2010)
• International Justice Tribune, 102 (24 March 2010)
• International Justice Tribune, 101 (10 March 2010)
• International Justice Tribune, 100 (24 February 2010)
• International Justice Tribune, 99 (10 February 2010)
• International Justice Tribune, 98 (27 January 2010)
• International Justice Tribune, 97 (13 January 2010)
• International Justice Tribune, 96 (23 December 2009)
• International Justice Tribune, 95 (9 December 2009)
• International Justice Tribune, 94 (25 November 2009)
• International Justice Tribune, 93 (11 November 2009)
• International Justice Tribune, 92 (28 October 2009)
• International Justice Tribune, 91 (14 October 2009)
• International Justice Tribune, 90 (30 September 2009)
• International Justice Tribune, 89 (16 September 2009)